# MPEP § 2303.02: Other Outstanding Issues with Patents

> Federal · Agency guidance · In force

URL: https://www.frixlaw.com/law-library/statutes/MPEP_S2303.02

## Section

- **Citation:** MPEP § 2303.02
- **Heading:** Other Outstanding Issues with Patents
- **Jurisdiction:** Federal
- **Kind:** Agency guidance
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** USPTO MPEP / Chapter 2300 - Interference and Derivation Proceedings / MPEP § 2303.02

## Text

Patents that are undergoing reexamination or reissue are subject to the
requirement of
37 CFR
41.102
that examination be completed. Patents may, however, be the
subject of other proceedings before the Office. For instance, a patent may be the
subject of a petition to accept a late maintenance fee in accordance with
35 U.S.C.
41(c)
, or a request for disclaimer or correction. See
pre-AIA 35 U.S.C.
253
,
35 U.S.C. 254
,
35 U.S.C. 255
, and
pre-AIA 35 U.S.C.
256
. Such issues ordinarily must be resolved before an
interference is suggested because they may affect whether or how an interference may be
declared. Similarly, any administrative trial ordinarily must be resolved before an
interference is suggested.
Example 1
A patent maintenance fee has not been timely paid. By operation of
law,
35 U.S.C.
41(b)
, the patent is considered to be expired. An interference
cannot be declared with an expired patent. See
pre-AIA 35 U.S.C. 135(a)
.
Consequently, if a petition to accept delayed payment is not granted in accordance
with
37 CFR
1.378
, then no interference can be declared.
Example 2
A statutory disclaimer under
pre-AIA 35 U.S.C. 253
, is filed
for the sole patent claim directed to the same invention as the claims of the
applicant. Since the patentee and applicant must both have claims to the same
invention, in accordance with
pre-AIA 35 U.S.C. 102(g)(1)
, no
interference can be declared.
Example 3
Similar to Example 2, a request for correction under
35 U.S.C.
254
or
255
, is filed that results in a
change to the sole patent claim such that it is no longer directed to the same
invention as any claim of the applicant. Again, since the patentee and applicant must
both have claims to the same invention,
pre-AIA 35 U.S.C. 102(g)(1)
, no
interference can be declared.
Example 4
Inventorship is corrected such that the inventors for the patent and
the application are the same. Because
pre-AIA 35 U.S.C. 102(g)(1)
requires the interference to be with “another inventor,” the correction eliminates
the basis for an interference
, since the patentee and applicant must
both have claims to the same invention,
pre-AIA 35 U.S.C. 102(g)(1)
, no
interference can be declared.
Example 4
Inventorship is corrected such that the inventors for the patent and
the application are the same. Because
pre-AIA 35 U.S.C. 102(g)(1)
requires the interference to be with “another inventor,” the correction eliminates
the basis for an interference. Other rejections, such as a double-patenting rejection
may be appropriate.
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## Nearby sections

- [MPEP § 2301 Interference Proceedings](https://www.frixlaw.com/law-library/statutes/MPEP_S2301.md)
- [MPEP § 2301.01 Statutory Basis](https://www.frixlaw.com/law-library/statutes/MPEP_S2301.01.md)
- [MPEP § 2301.02 Definitions](https://www.frixlaw.com/law-library/statutes/MPEP_S2301.02.md)
- [MPEP § 2301.03 Interfering Subject Matter](https://www.frixlaw.com/law-library/statutes/MPEP_S2301.03.md)
- [MPEP § 2301.04 Applicability of 35 U.S.C. 102(g) to Applications filed on or after March 16, 2013](https://www.frixlaw.com/law-library/statutes/MPEP_S2301.04.md)
- [MPEP § 2302 Consult an Interference Practice Specialist](https://www.frixlaw.com/law-library/statutes/MPEP_S2302.md)
- [MPEP § 2303 Completion of Examination](https://www.frixlaw.com/law-library/statutes/MPEP_S2303.md)
- [MPEP § 2303.01 Issuance and Suspension](https://www.frixlaw.com/law-library/statutes/MPEP_S2303.01.md)
- [MPEP § 2303.02 Other Outstanding Issues with Patents](https://www.frixlaw.com/law-library/statutes/MPEP_S2303.02.md)
- [MPEP § 2304 Suggesting an Interference](https://www.frixlaw.com/law-library/statutes/MPEP_S2304.md)
- [MPEP § 2304.01(a) Interference Search](https://www.frixlaw.com/law-library/statutes/MPEP_S2304.01(a).md)
- [MPEP § 2304.01(b) Obtaining Control Over Involved Files](https://www.frixlaw.com/law-library/statutes/MPEP_S2304.01(b).md)
- [MPEP § 2304.01(c) Translation of Foreign Benefit Application](https://www.frixlaw.com/law-library/statutes/MPEP_S2304.01(c).md)
- [MPEP § 2304.01(d) Sorting Claims](https://www.frixlaw.com/law-library/statutes/MPEP_S2304.01(d).md)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/MPEP_S2303.02. Check the current official text before relying on it. Not legal advice.